Since the founding of the firm, Debevoise has had a vibrant investment management regulatory practice. Lawyers working in the Funds/Investment Management Group possess in-depth experience managing regulatory environments in North America, Europe and Asia, providing practical advice to private equity firms on the nuances of regulation in virtually every corner of the globe.
In the United States, the firm’s regulatory practice covers all aspects of the U.S. federal securities laws applicable to investment management firms. With respect to investment advisers, the practice includes registration and compliance under the Investment Advisers Act, ongoing compliance with the Investment Advisers Act and other U.S. federal securities and commodities laws, and preparation for SEC examinations, support during examinations, and responding to deficiency letters. The practice also includes assisting non-U.S. managers with and without U.S. affiliates or offices, and non-U.S. affiliates of U.S. advisers, in structuring and developing compliance policies to rely on exemptions from registration under the Investment Advisers Act.
In addition, the team advises clients on all aspects of compliance with the Investment Company Act regulation, including acting as counsel to the investment adviser or counsel to the independent directors of mutual funds and closed-end funds, assisting sponsors in structuring investment funds, and analyzing the Investment Company Act status of companies, including during financings, initial public offerings, or other offerings of securities.
Further, the team has developed extensive expertise on all aspects relating to compliance with the so-called “Volcker Rule” for both sponsors subject to the Volcker Rule and sponsors seeking investments from investors subject to the Volcker Rule, based on the team’s extensive engagement before, during and after the rulemaking process on behalf of clients and industry groups.
Finally, there has been an increasing focus by the SEC on a range of activities regularly conducted by private equity firms that could subject them to regulation as broker-dealers. In coordination with the firm’s Financial Institutions Group, the team assists clients in structuring their activities appropriately to navigate this evolving area. The practice also advises firms wishing to establish affiliated broker-dealers, and provide day-to-day counsel to clients on a wide range of broker-dealer matters, including FINRA and SEC regulatory and enforcement issues.
With a European team qualified in the UK, Germany, Luxembourg and France, and a strong network of local advisers throughout the continent, the team regularly assists clients in compliance with all regulatory processes and formalities throughout the life of a fund.
The firm’s European team includes recognized experts and thought leaders with respect to the Alternative Investment Fund Managers Directive (“AIFMD”), which is widely recognized as the single biggest development in the regulation of private investment funds in Europe for a generation and the key regulatory challenge for fund managers active in Europe. The team advises clients on the implications of AIFMD in a number of areas, including general structuring advice with respect to management and advisory platforms, marketing funds under the AIFMD marketing passport, marketing funds under the AIFMD national private placement regimes, notifications of material holdings or control over portfolio companies and advice on disclosures and restrictions on asset stripping in respect of such companies, depositary requirements, and regulator reporting and investor disclosures.
The European team also has significant expertise with respect to the Markets in Financial Instruments Directive (“MiFID”), which is of particular importance to investment advisors in Europe. Since its implementation, and the subsequent MiFID II legislative package, the team in Europe has been advising clients on the impact of this EU initiative, including advice on passporting under MiFID in relation to activities such as investment advice and reception and transmission of orders, advice on MiFID requirements (such as customer communications, disclosure, conflicts of interest, client agreements and systems and controls), recording of telephone conversations, transaction reporting, client categorization, and product governance. The firm advises on the new passport opportunities made available under MIFID II for non-EU investment advisors. The team is also actively assisting clients in their preparation for the implementation of MiFID II. In addition, the team advises clients with respect to their advisory structure and set up in Europe.
The firm’s funds regulatory lawyers are for the most part trained as fund formation lawyers and have a profound knowledge of the industry and market standards. They differentiate themselves by combining technical regulatory expertise, market knowledge and creativity with a commercial practicality that takes each client’s particular position and needs into account. The European team works closely with national and pan-European industry associations, including Invest Europe, the BVCA in the UK, the AFIC in France and the BVK in Germany. The team’s close involvement in discussions relating to the development and implementation of European legislation enables them to provide focused advice and valuable insights for the firms’ clients.
The European team also has substantial experience in the regulation of institutional investors such as insurance companies and pension funds. These investors are subject to very rigid and complex requirements when investing in private funds (such as Solvency II, the new regulatory European framework for insurance companies). Funds need to meet certain requirements with respect to the structure but also with respect to their terms and the reporting in order to qualify as eligible investments for such investors. The firm’s funds regulatory lawyers work closely in particular with the firm’s funds tax lawyers to find the right structure and appropriate terms so that the fund is attractive for these investors.